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Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices

Thursday, October 4, 2012

(1530)

The Chair (Hon. Rob Nicholson (Niagara Falls)):

[English]

Could I have your attention. I would ask those in the media to move back. Thank you very much.

[Translation]

Good afternoon, ladies and gentlemen, and welcome.

[English]

I would like to welcome colleagues, committee members, Mr.
Justice Richard Wagner, and

[Translation]

Our learned friend, Jean-Louis Baudouin.

[English]

Ladies and gentlemen, on this occasion, members of Parliament acting on behalf of all Canadians will be able to engage in a dialogue with the most recent nominee for the Supreme Court of Canada, a process the Prime Minister outlined in his announcement on October 2 of this year.

At that time, the Prime Minister announced that the nominee would appear at a public hearing of an ad hoc committee of
parliamentarians to answer the questions of members of Parliament.

[Translation]

This procedure has been followed before, in 2006, when Justice Marshall Rothstein was appointed to the Supreme Court of Canada, and, more recently in 2011, with the appointment of Justice Karakatsanis and Justice Moldaver.

[English]

This public hearing is intended to bring greater openness and transparency to the appointments process by allowing Canadians to learn more about those individuals who are nominated to the Supreme Court of Canada.

The selection process began after Madam Justice Marie Deschamps gave notice of her intention to resign from the court, effective August 7, 2012.

In keeping with the announced process, and in view of the fact that we're replacing one of the three judges from the province of Québec, I consulted with the Attorney General of Quebec and senior members of the Canadian judiciary, as well as with prominent legal organizations, including le Barreau du Québec and the Canadian Bar Association.

The purpose of this consultation was to identify a pool of qualified candidates for appointment to the Supreme Court of Canada. Members of the public were also invited to submit their input with respect to qualified candidates who would merit consideration. A list of qualified candidates was then reviewed by an appointment selection panel composed of five members of Parliament from the government and recognized opposition caucuses, as selected by their respective leaders.

The members were Jacques Gourde, Kerry-Lynne Findlay, and Greg Rickford, of the Conservative Party of Canada; Françoise Boivin, of the New Democratic Party; and the Honourable Stéphane Dion, of the Liberal Party of Canada.

The panel was tasked with assessing the candidates and providing an unranked list of three qualified candidates to the Prime Minister and me for our consideration.

To help ensure a full, balanced, and objective assessment of the candidates, the members of the panel met to review the Resumés provided by each candidate, as well as a number of reported judgments and publications.

The panel members also consulted with the Chief Justice of Canada, the Chief Justice of Quebec, the Attorney General of Quebec, le Barreau du Québec, and the Canadian Bar Association. A list of three candidates, which included our nominee, were unanimously approved by the panel.

Before I introduce the nominee, I would like to address a few procedural issues that will govern today's proceedings. First, as was the case last year at the hearing for Justices Karakatsanis and Moldaver,we will begin with an opening statement from our constitutional expert, Maître Jean-Louis Baudoin. This will be followed by opening remarks from the nominee. There will then be two rounds of questioning by committee members, of up to eight and five minutes, respectively. As chair, I will be responsible for enforcing these time limits.

The proceeding will end with concluding comments by Maître Baudouin.

Second, I would like to inform our members and guests that parliamentary privilege does not apply to these proceedings, as this is technically not a parliamentary committee. This means that protection from defamation does not apply as it would normally in parliamentary proceedings. I leave it to each of you to exercise your good judgment accordingly.

Finally, I would like to remind you that our eminent member of the Canadian judiciary will be responding to our questions in a manner that reflects the independence and impartiality of our justice system.

That means some questions may not be answered fully, or at all. Maître Baudouin will explain the appropriate scope of questions and the constraints on judicial speech for us shortly. I would ask that we, as committee members, respect those parameters within which our nominee is able to respond.

I have the honour and privilege of introducing an outstanding jurist as the government's nominee to the Supreme Court of Canada, Mr. Justice Richard Wagner, of the Quebec Court of Appeal.

Mr. Justice Wagner was born in Montreal on April 2, 1957. He studied at the Collège Jean-de-Brébeuf in Montreal. After graduating from the University of Ottawa with a bachelor's degree in political science and a licence in law, he was called to the bar of Quebec in
1980.

He was a member of the Canadian Bar Association and a fellow with the Canadian College of Construction Lawyers.

Justice Wagner is a former partner of the law firm of Lavery, de Billy in Montreal. He was a recognized and respected civil and commercial litigator and acted in a number of important cases before the Supreme Court of Canada.

He often appeared as legal counsel before the Superior Court and the Quebec Court of Appeal. His commercial litigation practice focused on areas such as real estate, commercial litigation, and professional liability insurance.

He was recognized as a certified mediator by the bar of Quebec and the Superior Court.

He is also an executive member of the construction law section of the Canadian Bar Association, Quebec division, and an instructor of the pleading and representation program, as well as the civil procedure program at the École de formation Professionnelle of the bar of Quebec.

He is an active member of the bar of Montreal as an executive and committee member.

Justice Wagner was elected bâtonnier of the bar of Montreal in 2001. On September 24, 2004, he was appointed a judge of the Superior Court of Quebec. Following his appointment to the Superior Court, he received the merit award from the bar of Quebec for his contribution to the legal profession, and more particularly for the creation in 2002 of the Centre d'accès à l'information juridique.

Finally, Justice Wagner was promoted to the Québec Court of Appeal in February 2011.

I would like to move now to the next step and introduce the Honourable Jean-Louis Baudouin. Maître Baudoin holds a law degree from McGill University, a state doctorate from the Paris faculty of law, and a graduate degree in comparative law from the Faculté internationale de droit comparé in Madrid and Strasbourg.

He has been a member of the Quebec bar since 1959. Maître Baudouin was also a judge of the Quebec Court of Appeal from 1989 to 2009, and prior to that was a professor at the Université de Montréal, faculty of law, where he taught contract law, civil liability, medical law, and bioethics.

He is now a senior counsel with the law firm of Fasken Martineau in Montreal. He's a prominent and well-known member of the Quebec bar. Over the years he has collected numerous honorary degrees. More recently, in 2012, he was the recipient of the grand officer medal from l'Ordre national du Québec.

I will now ask the Honourable Jean-Louis Baudouin to provide us with an overview of the constitutional framework within which this hearing is to take place.

(1535)

Mr. Jean-Louis Baudouin (As an Individual):

[Translation]

Good afternoon, Mr. Minister, ladies and gentlemen.

Let me first tell you how honoured I am to be here before you today. For a lawyer of my advanced years, it is indeed an honour to play a part, albeit a modest one, in the process that will lead an individual to one of the highest and most respected positions in our land.

It is also a pleasure to be here today with Mr. Justice Richard Wagner, whom I have known for a number of years. His career to date has been marked with success in the highest degree, as you were able to see yourselves as you read his curriculum vitae.

The appointment to the Supreme Court of Canada is, of course, a great honour for him, but it is also a weighty responsibility. Since you are the last filter in the long process of selecting the best candidate, your role today is particularly important. Through your questions and, as I like to say, through your dialogue with the candidate, you must verify his professional and personal qualifications and thereby, in a more general way, confirm his ability to successfully discharge his mission.

The selection process that we are part of today is a recent one. It was used for the first time in 2006 for the appointment of Mr. Justice Rothstein. It was used again in the fall of 2011 for the appointments of Mr. Justice Moldaver and Madam Justice Karakatsanis.

Some people have expressed unease and doubt about the process. There are those, in fact, who feel that it may lead to some abuse, to a politicization of the proceedings–I use the term in its pejorative sense–such as we see with our neighbours to the south when candidates are selected to the Supreme Court of the United States. Indeed, there are those who fear that it may put future candidates in an embarrassing position, somewhat as if they were being crossexamined in court.

However, if one examines, as I have, the transcripts from 2006 and 2011, one realizes that, happily, the fear is without foundation. In both cases, your predecessors in Parliament have shown great wisdom and great moderation. They understood that the process was not about putting a person or his or her ideas on trial, but simply about verifying, through friendly and serene dialogue, the person's ability to fulfill the task well. I feel that we must congratulate your predecessors for understanding and applying the philosophy that underlies this process.

I would like to say a few words about the Supreme Court of Canada, though probably nothing I say will be new to you. The nine justices who make up the Supreme Court of Canada are appointed by the Governor General on the recommendation of the Prime Minister. The Supreme Court is the highest court in the land and plays a pivotal and fundamental role in the great social and political directions that Canada takes. Permit me to explain.

As parliamentarians, you have the responsibility, a heavy one at times, of approving legislative texts that determine the great directions that the country takes in all areas, be they legal, social, economic or international. But a legislative system, however good it may be, cannot claim to be perfect and complete unto itself. Our laws, in fact, must be interpreted; there must be a way for their shortcomings to be addressed and for their ambiguities to be resolved. That is one of the Supreme Court of Canada's roles, to be the forum of last resort that, as a result, establishes the law for the future. So it is that, with conflicting findings coming from provincial courts of appeal, the court must decide what henceforth the law will mean all across the country.

With the advent of the Canadian Charter, the Supreme Court's impact on the life of the country profoundly changed. The court actually is the final bastion of our collective and individual freedoms. It is the final defender of human rights and the body that ultimately gives appropriate meaning to the Charter. In a democracy like ours, this is a particularly delicate mission. In the absence of precise legislation, the court must fill voids in and find solutions to extremely complex matters that those who come before it bring because our society is constantly evolving.

Each year, the court hears a mere hundred or so appeals from every jurisdiction in the country. The small number tells you that every case has the greatest significance. Hence the personal and professional qualities that every candidate must have.

(1540)

What are they? What are those qualities that you have to verify today?

Of course, the first is to be a legal expert, but, to me, that is a given because, from the outset, the selection process guarantees that fundamental and indispensable attribute. All the problems that the Supreme Court has to rule on are complex, thereby requiring a deep knowledge of the law and a particular aptitude for discussing and solving the problems that arise.

The second, which I believe is very important, is to be openminded. A judge must always have an open mind–and I speak from experience, having spent twenty years or so at the Quebec Court of Appeal. This implies the three following requirements. First, a judge must be ready to set aside personal convictions of morality and philosophy and to decide cases according to existing law with complete impartiality. He must then eschew intolerance, predetermined opinions and prejudice. He must humbly agree to question himself, and so be able to change his mind or his ideas without thereby seeing that as a negative situation. Finally, at all costs, he must maintain his independence.

I sincerely believe that we have one of the best legal systems in the world, if not the best. We have already proved that and we must continue to keep it so. It is in large part because of our tradition of judicial independence that a democracy like ours can survive and thrive for the benefit of all its citizens.

Clearly, some rulings that Supreme Court justices make will not be unanimously accepted and will sometimes even create controversy. But the judge must remain serene, above the fray. He must continue to render judgments with complete impartiality, whatever the impacts of his decisions are, without feeling forced to please private, public or government interests with those decisions. Being a judge does not mean trying to win a popularity contest.

In strictly professional terms, he must be able to function as a team, to have free discussions with colleagues, to be open to their views and to write clearly and intelligibly. I can assure you that, in that aspect, the work that justices of the Supreme Court must do is demanding and difficult.

So, with that said, what is your role this afternoon; which questions must you or can you ask? Once again, the object of the exercise is not to confront the candidate about current or past
problems. Rather, the object is to assure yourselves that his answers demonstrate that he has the personal and professional qualities to fulfill the task well. As your colleagues have done on the two previous occasions, I feel therefore that you must avoid asking the candidate questions on ongoing cases that are already the subject of legal debate, and avoid asking about the validity of decisions he may have made in the past. Finally, avoid matters that are more closely related to his personal philosophy in terms of social or political controversies.

Your task, once again, is to assure yourselves that the candidate's answers match the profile required of this important position. You can feel free to ask him about the way in which he sees his role, about what he hopes to contribute to the advancement of the law, or, more generally, about the way in which he fulfills his responsibilities and about his overall motivations.

Mr. Chair and Mr. Minister of Justice, let me end there as I do not want to take up your valuable time. Thank you for your attention.

Mr. Minister, hon. members, I am sure you can understand the joy I feel in being with you for this dialogue that is now part of the appointment process for Supreme Court of Canada justices. That joy in being able to meet you and chat with you is also accompanied by a healthy dose of anxiety. Some of you have had the opportunity to be part of a similar exercise when Justices Karakatsanis, Moldaver and Rothstein were appointed. You may also have the opportunity to go through the exercise again with other appointments in the years to come. For me, this is the first and last time.

[English]

There won't be a second kick at the can.

[Translation]

They say that you only have one chance to make a first impression, don't they?

[English]

Mindful of your responsibilities as the elected representatives of the citizens of this country, I will do my utmost this afternoon to speak about myself in such a way that you might fully acquit your role in this appointment process. I shall be most pleased to answer any questions you might have to the best of my ability.

I understand that the task you are charged with is especially important in allowing Canadians, whose daily lives are touched constantly by the decisions of the Supreme Court of Canada, to learn about the persons nominated to our country's highest court.

(1550)

[Translation]

I am a Montrealer by birth and I am proud of my francophone heritage, of my mother tongue, said to be one of the most beautiful in the world, and of my Quebecois culture.

I have always lived in Quebec and, to the extent possible, I have humbly tried to do honour to my fellow citizens in all the positions I have held so far. This is a life commitment that will always follow me into the future.

I must confess that life has pampered me so far. At my side, I have two magnificent children, Charles and Catherine, both of whom, even after gaining an understanding of the difficulties inherent in practising law, have decided to follow in the steps of their father and grandfather.

Charles is now 26 and is a lawyer with the Montreal firm Heenan Blaikie. Catherine, three years his senior, is also a lawyer with training in both civil and common law. She now focuses on legal training for law students and lawyers.

I am also happy to announce that, last April, Catherine gave birth to a beautiful baby girl. She is called Juliette, after her grandmother on her mother's side. We have not stopped marvelling at her since. I feel that I do very well as a grandfather; at least I did not have to go through a selection process to enjoy that job. I am very proud to be a grandfather, but I hope that my granddaughter will not eventually be the cause of my first grey hairs.

A candidate for the Supreme Court, of course, has to reveal himself, to talk, and to talk about himself, in a good light to the extent possible. So I will try not to be too hard on myself, nor too easy.

Like Bécaud's song, my story is mostly about a happy man. The story started in fortunate surroundings, not so much financially, though we never lacked for anything, but rather because of the love and devotion of our parents. They both died young, so it will come as no surprise to you that I invoke their memory today.

My father, Claude Wagner, who died at the age of 54, dedicated his life to public service. His achievements aside, his nobility of spirit, his generosity and his sense of justice are sources of inspiration that live with me every day.

My mother, like many women of her era, was the conductor. She juggled our upbringing and education at the same time as she supported my father's efforts in his professional life.

So basically, I had a traditional childhood in an essentially matriarchal setting that was based on respect for others. I was curious by nature and interested in school–but even more so in
sports, I have to confess. I grew up with my sister Johanne, who was two years older, and my brother Christian, who was three years younger. Being the middle child very quickly teaches one the importance of compromise; being in that position forced me to develop consensus-building skills from a young age.

[English]

I grew up in a tightly knit family. From my youngest days, the bonds between us were necessarily close, especially given my father's busy role in public life. Family became for me the ultimate place of refuge, in which each of us would find in his or her own way comfort, strength, and personal growth while moving forward through exciting yet turbulent times with happiness and serenity.

My first contact with the judicial system goes back to when I was seven years old. But please don't worry; it was not to appear before juvenile court. It was at that age which, for the first time, I walked into a building known at that time as the new courthouse in Montreal, the Ernest-Cormier building, a place I was to rediscover 47 years later as a judge of the Court of Appeal.

[Translation]

I attended the Soeurs de la Providence elementary school and then took the classical program at the Collège Jean-de-Brébeuf, where I was a fixture until I went to university. I have vivid memories of the Collège Jean-de-Brébeuf. I had the advantage of a rigorous education marked by the open-mindedness that is so typical of a Jesuit education, while also honing my skills in several sports.

At 18, after CEGEP, I left the family nest and came to the University of Ottawa to do a social science degree, majoring in political science. If I may say so, this is also where I won my first legal battle.

I wanted to start law school at the same time as I was completing the bachelor-level social science degree in which I was registered. I tried without success to register in the law faculty. The registrar told me that university rules prevented a student from registering in more than one faculty at the same time. Not content with that, I demanded to see the actual rule. After a long, fruitless search, I was told that no such rule existed. So I was able to study in both faculties, which led the university senate to pass a new rule that now prevents students
from registering in more than one faculty. So I was able to live permanently in this beautiful Outaouais region, spending the summer at work by day and at my books by night. I have undying memories of the time I spent in Ottawa and my new duties at the Supreme Court will bring them alive once more.

As soon as my studies were complete, I began articling with Lavery, where I practised law until I was appointed to the bench. I wanted to be a barrister and that is certainly the way things worked out. I worked in the profession with enthusiasm and joy for almost 25 years until I was appointed to the Superior Court in 2004. My associates let me begin my career in litigation very quickly in every judicial district in Quebec and before every court. I was still articling when I was able to argue cases before the Provincial Court, as it was called at the time, before the Superior Court and even to present a petition at a session of the Court of Appeal of Québec.

Those colleagues trained me to constantly strive to be meticulous and to make sure that things were done properly out of respect for the clients and the institutions. I had the opportunity to meet outstanding legal minds like Vincent O'Donnell, Paul Carrière and Jacques Chamberland, the last two of whom would go on to important positions at the Superior Court and the Court of Appeal of Québec respectively.

(1555)

As a student, I also had the privilege of a brief association with the Honourable Justice Gérald Fauteux, the former Chief Judge of the Supreme Court of Canada, who had returned to practice law in Montreal after his retirement. I had as much pleasure in putting on a litigator’s robes as, 25 years later, I will have putting on the red robes of the Supreme Court.

In 1997, I also had the honour of playing a part in founding the Canadian College of Construction Lawyers. One of its first annual meetings was chaired by Honourable Justice Beverley McLachlin, of the Supreme Court of Canada.

[English]

Over the years I have had the great privilege to earn the confidence and loyalty of many clients, be they individuals or corporations, many of whom have not only honoured me with their
confidence, but also in certain cases with their friendship.

Working in a large Montreal law firm had, of course, its share of advantages and unique experiences, but it does not necessarily reflect the reality of the practice of law experienced by most lawyers. I then became interested in my professional order and its activities. My years of involvement with the Quebec and Montreal bar associations, as well as with the Canadian Bar Association, had an important impact on my view of things. They provided me with the superb opportunity to meet colleagues from various spheres of practice who, even though they were living different practical realities, contributed greatly to my education and understanding of the law. My happy experience in the affairs of the bar associations as councillor to the Montreal bar encouraged me to present my candidacy for the position of first councillor, and then as bâtonnier for the year 2001-02.

Before taking up the position of bâtonnier in 2001, I had to face a challenge with which you are more experienced than I, and that is to run for office in an election. You see, it was the first time there had been an election for bâtonnier since 1956. I can honestly say it was an enriching experience, especially since I was elected with 91% of the votes. If only you could be so lucky.

(1600)

[Translation]

Though the Bar of Montreal is only a small part of the great family of the Québec Bar, I was also able, as president, and with the support of a number of colleagues, to help in the establishment of the Centre d'accès à l'information juridique, the CAIJ, which, since 2002, has been providing all judges and lawyers from all the judicial districts of the province with quality access to legal information. This achievement is the fruit of strong leadership where transparency, a good ear, and a sense of compromise come together. It allowed us to channel opinions that previously diverged towards a common objective. In fact, that was the time that I came to understand that leadership is earned, it is not imposed.

My journey through the affairs of the Bar of Montreal was enriched by many people with different outlooks. My experience and my active practice before courts of all kinds also led me to share my knowledge with students in the École du Barreau. There I taught oral argument techniques and civil proceedings for several years.

In addition, for the first time in several years, I put the president’s tour back on the agenda. This allowed me, as president, to visit several hundred lawyers practising in the Greater Montreal region. The meetings–and there were a lot of them–were tailored to the profile and the type of practice of the lawyers who were invited to them. I provided them with information on major issues and I answered their questions. This was a unique feature of my presidency: it allowed me not only to come closer to the members of the Bar I headed and to better understand their needs, but also to inform them about the issues of the day and to assure them of their professional body’s support. I keep enduring memories of that time.

[English]

In September 2001 we were all profoundly affected by the attack on the World Trade Center in New York, a tragic event that has marked all of humanity. Three weeks after the events, I was
Montreal's representative at the first summit of the world bar associations, which brought together in New York City representatives of the local bar associations of 20 or so of the world's largest cities, including Paris, Madrid, Tokyo, New York, and Beijing, among others.

The summit, which took place not far from where the World Trade Center ruins were still smouldering, allowed lawyers from all continents to interact over the course of three days on the merits of our respective legal systems, as well as on the issues we all faced, such as the breadth of legal aid, the workings and the appointment process for judges, access to the courts, and the inherent delays of judicial process. We had those discussions while reminded of the fragility of democracy and freedom as a result of the most recent events.

[Translation]

On my return to Montreal, I felt conflicting emotions after this contact with those representatives of foreign Bars: reassurance and pride, but also frustration and regret. I was proud because I realized the extent to which our justice system compares favourably to any other system in the world. But I felt regret because, unfortunately, the undeniable attributes of our justice system in Canada are not sufficiently known by those who come before it.

Since that time, therefore, both as a lawyer and a judge, I have taken every stage that is offered to me to inform my fellow Canadians, especially young lawyers, about the merits of our system of justice. Even with its shortcomings, it remains an international standard of quality, timeliness, impartiality and independence. But this realization must not lead us to rest on our laurels and be satisfied with the status quo. We must take every opportunity to improve the system. But that is not the task of any single group. It is up to everyone, judges, lawyers, parliamentarians, and government representatives, to contribute to improve our system at the same time as we maintain its strengths and make them better known.

This digression about the meeting in New York leads me to another one: the need to support the justice system. I feel that the line between abiding by the rule of law and anarchy is a fine one. In that context, the tragic events in the Middle East remind us almost every day of the consequences of a democratic deficit at all levels of a society. So it is vital to keep our justice system credible in the minds of our fellow citizens. It is vital to maintain its integrity and its effectiveness in order to keep in check the cynicism that might lead to parallel justice, or, even worse, disillusionment and the feeling that justice is out of reach. Judges must do their part, of course, but Canada's Bar associations, governments and media must also be
involved.

As president of the Conférence des juges des cours supérieures du Québec, I wrote a letter last November in which I recalled that the enduring nature of our democracy and the respect for its fundamental values, including freedom of expression, largely depend on the impartiality of the judiciary, its independence and, above all, on its credibility in the eyes of those who come before it. You will have gathered that I am a fervent defender of the impartiality and the independence of the courts. In that open letter, I also stressed this:

The judiciary is accountable only to those who come before it. [It is independent of government.] Though it must not be sheltered from legitimate criticism, it requires
support and commitment from everyone in civil society. Without that support and commitment, it is in danger, little by little and as if by stealth, of losing its independence and its ability to provide justice.

(1605)

[English]

I now come back to my professional experience.

On September 24, 2004, I was appointed as a judge of the Superior Court of Quebec. This appointment allowed me to realize a dream that I had been caressing since my years at the faculty of law, and that is to return to criminal law, an aspect of the law with which I had not had the occasion to familiarize myself, given my civil and commercial litigation practice. Upon my appointment to the court, I registered for and took all the available training sessions in criminal law across the country.

Soon enough, I joined a group of judges on the court to take on the solemn duty of presiding over criminal jury trials.

The challenge was great, but fully worthwhile. I enjoyed every moment I spent in that role. The substantive law issues, the particular environment, and the unique relationship that exists between a judge and a jury were all elements that contributed to making my years in the criminal and penal division truly interesting and exciting. Those years brought me an intimate familiarity with the leading decisions of the Supreme Court of Canada on matters of criminal law and of the charter, and especially an understanding of the ever-changing contours of charter jurisprudence, which naturally enough are not fixed in stone.

(1610)

[Translation]

On February 3, 2011, I agreed to undertake another considerable challenge by joining the team at the Court of Appeal of Québec. I worked with great legal experts there, all anxious to accomplish their tasks meticulously, and with discipline and understanding. My experience of collegial work at the Court of Appeal of Québec will greatly assist me if my appointment to the Supreme Court is confirmed. The time I spent at the Court of Appeal of Québec introduced me to new requirements in writing decisions and opinions. It trained me in the collegial approach that requires judges to have open minds and, to the extent possible and required, a desire to find necessary compromises that will reconcile the divergent positions before them.

So, ladies and gentlemen of this committee, I appear before you today in great humility. My presence here indicates my commitment to contribute to a justice that is not disembodied but that must always, above all, respond to the needs of those who come before it. That justice is noble, that justice is generous of spirit, that is a justice that works.

[English]

I count myself as privileged to be standing before you as the designate for the position of justice of the Supreme Court of Canada. It would be an honour for me to serve my fellow citizens in that role if my nomination is confirmed.

[Translation]

Thank you for your attention.

The Chair:

[English]

Thank you very much, Justice Wagner.

Now we will begin the questioning, colleagues. The procedure we have adopted here is to go back and forth between the parties. Each member will have an initial round of up to eight minutes. Then there will be a second round after that of up to five minutes.

[Translation]

Let us start with my colleague Jacques Gourde.

Mr. Jacques Gourde (Lotbinière–Chutes-de-la-Chaudière, CPC):

Thank you, Mr. Minister.

Justice Wagner, it is a great honour for me to be part of this final stage in the appointment process.

Can you tell me, your honour, how your almost 25 years of practical experience as a lawyer in Quebec have prepared you for your new role as a Justice of the Supreme Court?

Can you also tell us how your experience as a judge on the Superior Court and the Appeal Court of Québec has prepared you for the role as well?

Mr. Justice Richard Wagner:

Thank you, Mr. Gourde.

As I mentioned in my opening remarks, I practised for almost 25 years with Lavery. At the time, the firm was called Lavery, de Billy, but it is called Lavery now. I was able to appear extensively before every court, everywhere in Quebec. Legal knowledge aside, the experience allowed me to become somewhat familiar with the ways and the customs in the regions. Arguing a case in Montreal or Quebec City is one thing, but arguing a case in a smaller place clearly brings with it subtle variations and differences. It interested me and I consider myself very privileged to have been able to appear before so many courts in so many parts of Quebec.

The practice was certainly intense. I had to do a lot of commercial litigation and professional liability. I had to make sure that the clients were well represented and that my associates were happy. As one carries out those tasks as a litigator, as a legal professional, as a servant of the clients' needs and as one of a team of associates, one develops abilities, certain ways of doing things. In that sense, I count myself as privileged. I feel that the intensity of the practice, conducted for a number of years in the trenches, would allow me to offer the country's Supreme Court my experience and knowledge of real situations. I think that it would be useful to cooperate with all my other colleagues of the court; at least, I believe that my
contribution would be helpful. I would have my own set of experiences and I would be with other members of the court who also bring experiences of their own. I feel that it would be a very
positive, collegial effort.

To answer your question, Mr. Gourde, I feel that those 24 years of intense courtroom practice have provided me with knowledge and maturity, and have allowed me to develop the fundamental skills of practising law, such as knowing the situation, the needs and the customs in any number of Quebec's judicial districts.

If I am not mistaken, you also wanted me to talk about the relevance of my years as a Superior Court judge.

I would add that it too was a very enriching experience. A trial judge works very much in the line of fire. You solve problems on the spot, in practical situations. You hear witnesses, you deal with evidence. The reality of trial judges is often different from the reality in a court of appeal, and even more different from the Supreme Court. I feel that that experience can help me to properly appreciate the reasons why people make certain demands. There are the obvious reasons, but there is also another reality hiding in the background.

My work at the Superior Court, which I loved, allowed me to develop some expertise in criminal law. I presided over jury cases, which was a new experience in my life, one that I had never had before. After working so hard, I must admit, I found it satisfying to finally be able to preside over jury cases. I think that it helped me acquire additional skills that might be of use to my colleagues on the court. They might also ultimately be in the interests of all Canadians.

(1615)

The Chair:

Do you have another question, Mr. Gourde?

Mr. Jacques Gourde:

Yes.

Three of the nine Supreme Court justices come from the province of Quebec.

In cases that involve Quebec civil law and that are heard before the court, the rulings are usually prepared by those Quebec justices. What civil law expertise and experience would you be bringing to the Supreme Court of Canada?

Mr. Justice Richard Wagner:

Essentially, Mr. Gourde, as a lawyer and as a Superior Court justice, I had the chance to work in civil law and commercial law. As a result, I have a good knowledge of those areas, at least I think so and I say so in all modesty. Not only did I have to master those areas as a lawyer, but I also had to rule on those issues as a judge.

The court decisions involve all nine justices. The fact that the knowledge of some is different from that of others simply brings more value to the court. After reading many Supreme Court
decisions, I am happy about one thing: even when the other justices who are not from Quebec rule on civil law cases, they still do so with a lot of skill, understanding and expertise. In short, when you come from the province of Quebec and you have basically practised in civil and commercial law, you obviously bring something extra to the skill set of the other colleagues at the court.

Let me also say that we are actually privileged to be in Quebec and in Canada in general. That is what I also told young lawyers when I chaired the swearing-in ceremonies. Quebec lawyers and students are experienced in civil law but also in common law. On a daily basis, they deal with common law without really realizing it. For instance, they are dealing with criminal law or other legislation, such as the Bankruptcy Act, the Winding-up Act and the Canada Business Corporations Act. There are a number of acts. Quebec lawyers are sort of brought up with the two types of legal training in both common law and civil law. So later, when they perform judicial functions, they are familiar with more than one area and can adequately fulfill their duties.

The reality of 30 years ago is not the same today. In the context of globalization, trade, economic treaties, and so on, we see that Quebec’s young lawyers are sought after abroad in international forums, precisely because they can master both civil law and common law. At the same time, the way they practise law is based on the British system where the administration of evidence is not the same as that of civil law societies like France, for example. So there are a lot of advantages. To answer your question, I must say that I come from a province where I grew up with those benefits, and my intent is to use them in the best interest of Canadians.

(1620)

The Chair:

Thank you very much.

Ms. Boivin, you now have the floor for eight minutes.

Ms. Françoise Boivin (Gatineau, NDP):

Thank you, Mr. Minister.

I am going to try to follow the main principles outlined by the great Jean-Louis Baudoin. I am happy to see that, after reading what was accomplished last year, he said that we demonstrated great wisdom and great moderation in our actions. You can be sure that I am going to put that on my CV tomorrow morning. I am going to try to continue along the same lines, since we fully understand the concept behind these hearings.

Let me congratulate you, Mr. Wagner. We all know that we are here to introduce you to Canada. In Quebec, perhaps people are more acquainted with you. On behalf of my colleagues who are here with me and who are in fact all members of Parliament from Quebec and on my own behalf, I would like to congratulate you on your appointment. You have certainly had an interesting journey. In terms of criticism, I don’t have much to say; it is not your fault that you are not a woman and it is not your fault that your father was who he was. So in light of that, let us move on to more serious things.

However, my message is for the minister; you still have two other justices to appoint, so don’t forget about women. And that’s my minute of politics.

Mr. Justice Richard Wagner:

Ms. Boivin, I must tell you that I am very proud of my father.

Ms. Françoise Boivin:

Right, and I am very pleased to hear you say it.

My colleague Mr. Gourde talked about your experience in civil law, but I would like you to go into more detail. How do you see the importance of civil law within the Supreme Court of Canada? We all know that Quebec has three seats and that your appointment has to be confirmed as representing Quebec.

Mr. Justice Richard Wagner:

Thank you, Ms. Boivin. That is an interesting question. The nature of the legislation is such that there are three judges from the province of Quebec. In principle, those three are particularly well versed in civil law.

But over the past few years, a new reality has emerged. Of course, there are still philosophical differences between common law and civil law, but in the context of globalization, we are seeing an increased borrowing of concepts between civil law and common law. As a result, we are realizing that a number of common law provinces and perhaps even foreign countries are influenced by civil law and will adopt civil law principles. In turn, civil law principles are influenced by common law principles. We are seeing that more and more. So perhaps the fundamental differences that we were able to see a few years ago are not so obvious today.

All that to say that, even though there are only three justices from Quebec, I am sure that the six other justices are also very experienced in civil law and common law, precisely because of this evolution, their experience and their open-mindedness.

So I don’t think that just because you don’t come from Quebec, you are automatically not able to appreciate the scope, the value, the merit and the determination process of Quebec civil law.

(1625)

Ms. Françoise Boivin:

But you are not suggesting that it is not important to have people from Quebec to protect Quebec civil law.

Mr. Justice Richard Wagner:

On the contrary, it is essential to make sure that the civil law of the province gets the attention it deserves.

Ms. Françoise Boivin:

I have another question. When we look at your CV, we can see your whole practical experience. I like that. Our paths have been somewhat similar, if I may say so. In fact, we graduated from the same university. It feels good to see someone from the University of Ottawa promoted to this level. Well done, University of Ottawa.

Having said that, by looking at your CV, we see that you became a judge for the Superior Court of Quebec in 2004, but you were appointed to the Court of Appeal of Québec only last year. In light of your personal and professional qualities, do you feel comfortable switching from the Quebec Court of Appeal to the Supreme Court after such a short time? Do you feel ready?

Mr. Justice Richard Wagner:

Thank you, Madam. I always say that I prefer quality over quantity. In other words, although I was at the Court of Appeal for only a year and a half, I can tell you that it was a very intense period and that I learned a lot. Let's not rely on quantity.

That said, common sense leads us to conclude that, if I had spent 15 years at the Court of Appeal of Québec, I would have had an additional 13 years of experience. That makes perfect sense. But I don’t feel that my short time at the Court of Appeal of Québec is an indication of my not being prepared for my role at the Supreme Court.

We must not forget the scope of collegial work, which is extraordinary. I cannot say that my first experience working with colleagues was at the Court of Appeal. At the Superior Court of
Quebec, especially at the Criminal and Penal Division, we were still doing collegial work. It might have not been related to rulings, because judges are always on their own when it comes to signing the ruling, but there is still a lot of teamwork in dealing with hearings and criminal cases, especially in megatrials. So we had to work together.

So you must not measure my knowledge of collegial work by solely relying on my short stay at the Court of Appeal of Québec. You have to look at the CV as a whole. You have to look at the
candidate's number of years of practice, type of practice and involvement. I feel that I have demonstrated my determination to never back down from a challenge.

Ms. Françoise Boivin:

So you are not intimidated by the challenge.

Mr. Justice Richard Wagner:

Not really, I have to say. I do my best in every case. As a matter of fact, I really look forward to working with other Supreme Court of Canada justices.

Ms. Françoise Boivin:

Do I still have time?

The Chair:

[English]

That's it, Madam Boivin.

Greg Rickford.

Mr. Greg Rickford (Kenora, CPC):

Welcome, Justice Wagner.

I myself am a lawyer, and if we're plugging universities, I was trained at McGill University in both legal traditions, civil law and common law. I couldn't then, and I'm not sure I could now, think of a greater responsibility, a greater exercise, as a lawyer myself and member of Parliament, than the opportunity to be involved in this process. I just want to thank all members with whom I worked on the selection process this summer, and of course our advisers. We gained lasting friendships, bonds, and mutual respect for each other. It was a great experience.

Justice Wagner, as a trial judge you had the opportunity to develop and demonstrate considerable expertise in criminal law. Part of criminal law is sentencing. We know that section 718 of the Criminal Code identifies the fundamental purpose of sentencing as “the maintenance of a just, peaceful and safe society”, and it goes on to list several objectives, which I know of course you're very familiar with.

My question for you, Justice Wagner, is as a trial judge, how were you able to take these objectives into consideration in arriving at a sentence, considering that from time to time these objectives may have competed with each other in certain cases?

(1630)

Mr. Justice Richard Wagner:

It's a very important question that you have raised. I always thought that when I was called to preside over criminal trials the most difficult process was the sentencing, after the accused was found guilty, of course. It's a difficult and sensitive process, because it calls for an amount of discretion–not for an arbitrary decision, but discretion, judicial discretion–and that's not easy. I always preferred to look at it in the light of fairness, and whether the sentence is fair given all the circumstances.

You were right in saying that section 718, and following, of the Criminal Code, gives the judge a lot of tools to work with and to decide what is the most appropriate sentence for the case. We should never forget that the judge will not sanction only the crime, but he also will sanction the criminal. He has to give proper light to the full picture, such as prior records, types of crime, was there violence, and so on and so forth. At the end of the day, given all the evidence, he must come to the conclusion what would be the fair sentence in the case, the adequate sentence given the profile, given the specific case.

I never looked at it as whether it was a tough sentence or a lenient sentence. Sometimes a fair sentence can be harsh imprisonment, whereas a fair sentence can be a lenient sentence also.

I prefer to look at it in the light of fairness. Is it just? Is it fair? That's one principle that guided me throughout those years.

Mr. Greg Rickford:

Thank you for that.

Justice Wagner, when you were an appellate judge, how did you approach appeals related to sentencing in criminal cases? What additional comments would you like to add with respect to that?

Mr. Justice Richard Wagner:

I think that the law has been well established up to now. I think the appellate courts should not and will not intervene usually, unless the trial division judge or the firstinstance judge made a blatant mistake or did not interpret correctly the criteria when imposing the sentence. The reason is that of course the first-instance judge must have his way out, his way of doing things. He has his own discretion. I think that the appellate courts should respect that discretion and only intervene in really special cases. Maybe the appellate court would not have imposed the same sentence. That's not the criteria. Whether it goes beyond a significant error would be more the criteria.

The Chair:

Thank you very much.

[Translation]

It is Stéphane Dion's turn now.

Hon. Stéphane Dion (Saint-Laurent–Cartierville, Lib.):

Thank you, Mr. Minister.

Mr. Justice Wagner, it is a pleasure to listen to you and to read your words as well. Something strikes me about you, and please correct me if I am wrong; it has to do with the emphasis you place on the principle of judicial independence and, beyond that, the principle of the presumption of innocence. What strikes me is that you are not only concerned about that in the context of the court, but in society in general.

In the article you published in 2003 in the Revue générale de droitentitled “Freedom for counsel and guarantees of the exercise of defence rights”–which I found outstanding, if I may give you my impressions as a reader–you are so concerned about it that you point rather firmly to the occasional media abuses in that respect. Let me read you an excerpt as an example:

… when the media decide to judge a person or a corporation in the public square, even though that party may eventually be acquitted or exonerated by the courts, … the media sentence is generally without appeal, leaving irreparable scars.

… the media … play fast and loose with editing or their own so-called investigations to pass final judgment, with no chance of appeal, and apply their own punishments.

So you are really worried about that. Where does this major concern about the principle of the presumption of innocence stem from? Has anything in your life or in your practice of law made this a fundamental issue for you?

(1635)

Mr. Justice Richard Wagner:

Perhaps it has to do with a bunch of little things that have accumulated over the years, but, at the end of the day, it is a question of balance. The independence and impartiality of judges and the presumption of innocence are very sensitive principles and we cannot play with them just like that. As you know, the survival and development of our democratic system rely on social consensus, because people individually agree to submit themselves to the authorities. If individuals stopped submitting themselves voluntarily to the authorities, anarchy would ensue.

In that sense, there is a fine line between the rule of law and anarchy. To ensure that the people will always be willing to submit themselves to the will of the judicial system, they have to have confidence in the judicial system. For that to happen, the system must be credible and, as a result, it should not be unduly attacked. So everyone must do their part. It is not the work of one single entity or one single person. The credibility of the justice system is key to ensuring that every individual that comes before the courts has the satisfaction and the conviction that they will be heard and that justice will be done–not necessarily that they will win, but that there will be justice. The problem arises when those people no longer believe in the justice system. So we end up with all sorts of problems, as you can imagine.

Hon. Stéphane Dion:

In your way of seeing the administration of justice, the presumption of innocence places the burden of proof on the prosecution, rather than on the defence, and it presumes the accused innocent until proven guilty by the court. For you, is this a principle of natural justice without which the justice system could not operate?

Mr. Justice Richard Wagner:

It is a societal choice, in any case. In Canada, we chose to adopt that principle. I find the principle noble, but it is a societal choice, first and foremost. You may see other societies adopt other principles. Here, in Canada, we want to ensure that Canadians are not wrongfully convicted. So it is always, without exception, up to the crown to prove a person's guilt beyond a reasonable doubt. Obviously, this presupposes that there may be cases where accused individuals who are guilty will be acquitted or found guilty of lesser offences because the crown has not been able to establish each ingredient of the offence beyond a reasonable doubt. But that is the state of the law. Courts must apply it and
respect it. I think it is a very noble societal choice that sets us apart from a number of other countries.

Hon. Stéphane Dion:

This principle may be open to exceptions.

In such cases, its opposite, meaning the presumption of guilt, at which time the onus would be on the defence, would be acceptable.

Mr. Justice Richard Wagner:

I think there are cases where the burden of proof may be nuanced depending on the offences. If I give you my personal opinion, I would be giving you a philosophical opinion that would go beyond what I already said earlier. I don't think it is my place here to give you philosophical opinions.

Hon. Stéphane Dion:

Very well, Your Honour.

The Chair:

Kerry-Lynne Findlay, you have the floor.

Ms. Kerry-Lynne D. Findlay (Delta–Richmond East, CPC):

Justice Wagner, welcome. It is an honour to have you here this afternoon.

I am also very proud to be a lawyer. I graduated from the University of British Columbia.

Our modern criminal justice system is basically considered an adversarial process between the prosecution and the accused, most often represented by a defence lawyer.

In your opinion, what is the role of a victim of crime in our criminal justice system?

(1640)

Mr. Justice Richard Wagner:

If you are talking about the active role of the victim, I think the existing provisions in the Criminal Code set out considerations regarding the victims of crime. In criminal trials in Canada, either at the taking of evidence or, especially, during sentencing submissions, the crime itself and its impact on the victim can be taken into consideration by the judge presiding over the trial. The judge already has some discretion and must apply the law.

Ms. Kerry-Lynne D. Findlay:

As a judge, what can you do to ensure that the rights and interests of victims of crime are respected?

Mr. Justice Richard Wagner:

It is important to ensure that the law is applied. Whether you are a trial judge, a judge for the Court of Appeal or the Supreme Court, the law exists, and judges just need to apply it. I say "just" but it is not always easy to apply it. However, most of them work hard to do it to the best of their ability. As I said earlier, the law, in its generic sense, already has provisions for victims' rights. The courts must apply the law. It is up to parliamentarians to enact legislation and it is not up to the courts to do it for them.

Ms. Kerry-Lynne D. Findlay:

Thank you.

The Chair:

Mr. Jacob, you have the floor.

Mr. Pierre Jacob (Brome–Missisquoi, NDP):

Thank you, Mr. Minister.

Thank you, Justice Wagner.

The fundamental quality of a justice is to render well-written and well-reasoned decisions. Some justices give fairly succinct and fairly direct decisions, while other issue longer, more thorough, more elaborate judgments. The goal is still to be understood by the legal world and by the public.

What can you tell us about your writing style?

Mr. Justice Richard Wagner:

I could give you my own assessment, but as the following sentence, which I like very much, says:

[English]

Do not say a little in many words but a great deal in a few.

[Translation]

I think that is the goal I have tried to attain over the years. In some situations, the issues are sufficiently complex that you cannot easily and quickly provide an opinion, in a few words or sentences. The Supreme Court's role is to be the guardian of the Charter and the Constitution. It sets out avenues and issues opinions. It not only indicates the state of the law in a particular case, but also the broad direction for the future.

I think it is important that decisions be written in clear language so that the individuals before the court can understand why they have won or lost and the impact of these decisions on the future.

Regardless, everything depends on the circumstances. General rules cannot be established. I have always tried to draft my reasons clearly. It is up to the individuals before the court to decide whether they are clear or not.

(1645)

Mr. Pierre Jacob:

What original qualities do you think you can bring to the current Supreme Court of Canada or, in other words, qualities it does not already have?

Mr. Justice Richard Wagner:

That is quite the question. I will answer it humbly.

The current Supreme Court justices are great legal experts. I think they are extremely noble-minded. For me, being able to join them would be a tremendous challenge. We all have our characteristics. I would not presume to say that I would offer this court something it does not already have. Not hesitating to work hard would be my personal contribution. That is what I have done in the past, and I think I can stand by that commitment. Moreover, I would bring with me my cultural and academic background, my life experience and my legal practice. And I would work with them.

Mr. Pierre Jacob:

Do I still have a bit of time?

The Chair:

[English]

You do. Go right ahead.

Mr. Pierre Jacob:

[Translation]

How has writing numerous articles and commentaries, as well as participating in seminars and conferences, prepared you for your future role as a justice of the Supreme Court of Canada?

Mr. Justice Richard Wagner:

The situation in Canada now is different from what it was several years ago. Society evolves, as does the role of judges in society. But it is important that they be able to participate in this evolution, to describe their work and speak about the justice system, all while taking into account their judicial restraint. This role may not have been very visible 15 or 20 years ago, but increasingly we are seeing judges having to participate in the evolution of society, while maintaining their obligation for restraint. When the opportunity arises, they must not hesitate to bring their contribution by giving lectures or expressing their views on the justice system, while ensuring they maintain their impartiality and independence.

Over the years, I have been asked to speak about major issues, while, I believe, maintaining my judicial restraint. I think that is part of the judiciary's role. It is not enough to simply play the role of a sphinx. The role is proactive and you must always be involved, while respecting the limits of your jurisdiction.

Mr. Pierre Jacob:

Thank you, Justice Wagner.

Thank you, Mr. Minister.

The Chair:

[English]

Thank you very much.

We'll go to Robert Goguen.

Mr. Robert Goguen (Moncton–Riverview–Dieppe, CPC):

[Translation]

First of all, congratulations and thank you for being here. This meeting will provide Canadians with an overview of your extensive legal knowledge.

You have significant experience in litigation, both as a lawyer and as a judge. I'm sure you'll agree that it's always much more pleasant asking questions than answering them. My question is about the Canadian Charter of Rights and Freedoms.

What challenge does the Charter present with respect to the relationship between Parliament and the courts, especially when the rights of individuals and the rights of the state must be considered?

Mr. Justice Richard Wagner:

Once again, it is a question of balance. In life, it is always a question of balance. This is even truer when it comes to legal matters.

In my opinion, the Supreme Court's role is to be the guardian of the Canadian Charter of Rights and Freedoms, the guardian of the Constitution. Sometimes, when a case is presented, the court must obviously assess the interpretation of certain specific individual rights compared to collective rights. This interpretation is not set in stone. It is, in fact, a direction that may follow the development of society. One does not have priority over the other, and I think that, each time, all the judges must assess the factual situation in order to decide to grant a priority to certain rights, either collective or individual, over other rights. This is not an easy exercise.

If I think about the decisions of the Supreme Court in recent years, I am quite proud of how the justices have conducted themselves. They have rendered solid decisions, particularly with respect to First Nations. It is not an easy exercise.

It is a question of balance.

(1650)

Mr. Robert Goguen:

In your opinion, what have been the major repercussions of the Charter since it came into effect?

Mr. Justice Richard Wagner:

The Charter changed society as we know it. It has required interpretations by the judiciary that have led to new laws, where necessary.

However, I think the impact of the Charter was immediate, as soon as it was adopted in the early 1980s. Its impact has never stopped developing.

Mr. Robert Goguen:

Thank you.

The Chair:

We now have Romeo Saganash.

Mr. Romeo Saganash (Abitibi–Baie-James–Nunavik– Eeyou, NDP):

[The member speaks in Cree.]

[English]

I'll do the translation myself.

[Translation]

Congratulations and thank you for being here. Please say hello to Juliette for me. I rarely have the opportunity to meet someone named Juliette.

I did not graduate from the University of Ottawa or McGill University. I graduated from UQAM. The Université du Québec à Montréal needs to be part of this discussion.

Your honour, I come from a world where, at one time, the concept of aboriginal rights, as we know it today, were almost unheard of in Canada. In the early 1970s, at the time of the James Bay case, very few people took issues related to aboriginal rights before the courts. It was very rare at the time. In that sense, could you tell us a little about your experience with aboriginal causes, if you have any?

I mention this aspect, this dimension–and you just mentioned it as well–because quite recently, the Federation of Law Societies of Canada adopted a recommendation that all new lawyers in Canada have knowledge of aboriginal rights.

Do you think that recommendation is reasonable and useful for the future of our justice system for aboriginals in Canada?

Mr. Justice Richard Wagner:

Thank you very much, Mr. Saganash. I am pleased that you asked me this question because you're right. As for the last part of your question, I think that knowledge is never a bad thing. The more information Canadians can get about the First Nations, the better. The same thing goes for any kind of information. In other words, since ignorance is the root of many prejudices, let's be happy if people have access to relevant information on the First Nations.

You touched on an important point. I think people have long tended to consider that Canada has two founding peoples: francophones and anglophones, and the First Nations are forgotten.
Obviously, this reality is tending to disappear in public discourse. The First Nations, aboriginals, have taken their place, and I think it is in large part because of the Supreme Court decisions. I am very proud of those decisions and recognize the place that aboriginals must take in Canada's history. As for the rest, that is perhaps a political issues I would prefer not to address.

(1655)

Mr. Romeo Saganash:

We are going to move from aboriginal rights to international law.

As we know, international law is having an increasing influence on Canadian law, whether it relates to human rights or other areas of law.

I agree with you about your balanced approach. For 23 years, I was involved in the negotiations relating to the UN Declaration on the Rights of Indigenous Peoples. This document of international law contains provisions protecting the rights of third parties. The declaration contains 17 of them.That is the balance that we tried to strike during those negotiations.

Do you have any experience in international law?

Mr. Justice Richard Wagner:

International law covers many different fields. I remember that, even in law school, fellow students said that they wanted to work in international law. Yes, but international law comes up in a certain way. In practical terms, it comes up in our files, for example, in arbitration. Provisions of foreign laws may have to be applied when dealing with commercial arbitration. In terms of commercial litigation, you may have to choose the appropriate context in which to bring proceedings, which may also involve applying foreign legislation.

I have dealt with international law in the context of commercial litigation. Furthermore, we have seen over the years that the globalization of trade relations has meant that we are often required to deal with the enforcement of foreign legislation. That is international law. This isn't necessarily foreign public law, for example in the field of treaties, though it is a source of influence. There is not just international private law. There is also international public law, which means that countries around the world no longer live in a vacuum. They can be influenced by certain provisions of treaties that do not concern them at all.

To answer your question, I have dealt with international law in my cases when i was a lawyer and, sometimes, when I was a judge. For example, with criminal treaties, trial judges need to apply extradition treaties. So a type of provision is applied that has repercussions on the foreign countries. It is limited to that.

Mr. Romeo Saganash:

Thank you.

The Chair:

[English]

Thank you.

Now, Scott Reid.

Mr. Scott Reid (Lanark–Frontenac–Lennox and Addington, CPC):

Welcome to our committee, Judge.

I want to follow up on the line that my colleague, Mr. Goguen, was taking in his question.

Eighty years ago, in the famous Persons case, Lord Sankey wrote what I think is the best known piece of obiter in Canadian jurisprudence when he said, “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” This is often taken to mean that the courts can and should alter the meaning of parts of the Constitution, so as to allow it, as one court has said, to accommodate the realities of modern life.

Until recently, the courts took a very different view. For example, I have a quote here from a 1937 ruling of the Alberta Court of King's Bench, in which the judge ruled:

It seems to me that none of the observations of Viscount Sankey can be said to provide legal justification for an attempt by Canadian Courts to mould and fashion the Canadian Constitution by judicial legislation so as to make it conform according to their views to the requirements of present day social and economic conditions.

I'd be interested in your views on this subject.

(1700)

Mr. Justice Richard Wagner:

That's a big subject. It calls for personal opinion, philosophy.

It is quite possible–not possible, but probable–that the Supreme Court will be called again to interpret the Constitution, and with all due respect, I would like to be part of that debate and that decision. I would prefer not to comment on this question at this time. Mr. Scott Reid: Okay.

I have another question, but it's a different version of the same thing, so perhaps, Minister, I'll turn it back over to you to go to the next person.

The Chair:

Thank you very much.

[Translation]

Mr. Toone, do you have any questions?

Mr. Philip Toone (Gaspésie–îles-de-la-Madeleine, NDP):

Minister, I appreciate Mr. Reid's question as well, but I'll comment
on that another time. Surely, this isn't the first time the matter's come
up.

Thank you, justices, for meeting with us today. It's quite an honour
to have you here.

I would also like to promote my university. I did some of my legal
training at the University of Ottawa. Congratulations to all the legal
experts. After all, the University of Ottawa is quite privileged
because of its access to such an unmatched resource, the Supreme
Court. University of Ottawa students are incredibly fortunate in that
regard. I gained a better understanding of Canadian bijuralism when
I studied there as well.

My question is this. In jurisdictions that operate solely under civil
law, such as the Cour de cassation in France or Belgium, decisions
can be as short as a single page, in extreme cases. That certainly isn't
the case in common law jurisdictions, nor ours. I would say it's
virtually impossible to have a one-page decision in a bijural system
like ours.

Recently, however, we've seen a new trend, particularly under
Chief Justice McLachlin: a move towards shorter decisions. We
often see decisions written by a number of judges. While the appeal
may be accepted, there are a variety of arguments. Each legal expert
may have their own reason for giving an argument in the court's
decisions. What is your take on that? You mentioned the
collaborative dynamic among the Quebec Court of Appeal's three
judges. But the Supreme Court has nine. No doubt the dynamic is
more collaborative still. Do you expect to work in cooperation with
the other judges when writing decisions? How do you see that
working?

Mr. Justice Richard Wagner:

I have the same vision today as I
did when I was on the Quebec Court of Appeal or the Superior Court
of Quebec. A judge has a duty to explain the reasons that led him or
her to a decision.

As I was saying earlier, some cases are more complex than others.
Usually, the higher the court, the more complex the case, as regards
both the legal impact and issues. This is particularly true at the
Supreme Court level.

Though the principle remains unchanged. You must clearly
explain, in your reasons, why you arrived at the decision you did, so
that the litigants, the public, counsel and the parties concerned
understand. Subtle distinctions may be at work.

You're saying it might be more complicated with nine judges
versus three. Conversely, nine judges may mean more resources,
greater participation and a richer supply of ideas. I am talking about
quantity, not quality. So every case has to be considered individually.
Some cases might call for shorter reasons, an exercise that could
prove impossible in other cases. It's always possible to do a good job
if you keep the goal in mind.

(1705)

Mr. Philip Toone:

Thank you for your answer. I agree with you.
It is incumbent upon the court to make itself understood. It comes
down to what you said. We want people to have confidence in our
justice system. And that includes this element.

I would like to come back to training. I also have a background in
computers. I think it's wonderful that you developed a computer
system. In fact, I've used your system, but I can't remember the full
name; I didn't commit it to memory. I believe it's called the Centre
d'accès à l'information juridique, or CAIJ.

What role do you see for electronic resources like that? Should
they be geared primarily towards providing access to the law in
Canada? What do you think of electronic systems when the various
courts provide the data that goes into them? People frequently
consult them to find out where the law stands on an issue. Do you
believe we should enhance these systems? If so, how? What is your
take on computer systems as they pertain to law in Canada?

Mr. Justice Richard Wagner:

If we're discussing the biggest
issues facing Canada's judicial system, first and foremost is access to
justice, in my view. And access to justice also means access to legal
information.

Earlier, one of your colleagues and I were talking about
information. The more information you have, the less biased you
should be. That is all the more true in the legal realm. I think we've
moved beyond the age when information is housed solely in
volumes and legislation and retained by certain people. With today's
continuous flow of information and computer technology, there is
more reason than not to make legal information accessible to
everyone.

Everyone concerned has to do their part, whether it be law
societies, governments or news media. Furthermore, the courts
should exercise their respective jurisdictions and take the necessary
steps to ensure that legal information and their judgments are
disseminated.

I believe the Supreme Court's website is especially well done. But
that is not to say there is no room for improvement. I agree with you.
Access to justice hinges on access to legal information.

The work we did in early 2000 or 2001 is along those lines. I am
extremely proud. At the time, it was really an act of faith; the two
major centres, Montreal and Quebec City, did not necessarily have
the same interests as the regions. We were able to establish a
common goal by creating a separate body where professionals
endeavour to provide legal information in a professional manner. We
were able to put the library of every lawyer in the province right on
their desktop. And that's paramount when we talk about access to
justice. As I see it, everyone working within the justice system must
strive to further those efforts.

Your last words about accessibility and your presence here, and
the role of Master Baudouin and of the minister, I think, have really
elevated people's appreciation of our justice system, and hopefully
they have respect for it. Thank you again.

[Translation]

Justice Wagner, as an aside, I see that when you were last elected,
you received only 91% of the vote. Ours is a competitive field, so of
course we're sorry to see you didn't receive more than 91%.

[English]

Maybe the next time…

You spoke in different ways about accessibility. I was particularly
touched by your account of the meeting you attended in New York
after 9/11. In that case, you were talking about accessibility, perhaps
financial and operational accessibility to the courts. You also used a
very trenchant expression: don't say little in many words, but say
much in a few.

Many of the decisions you will be involved in will be fact specific.
They'll touch the whole nation, though. I'm wondering, as a British
Columbia lawyer, where we've spent a lot of time in the profession
looking at plain language, whether you have some thoughts on
expressing judgments in a way that will be accessible to the nation,
so they can understand what our Supreme Court is saying.

(1710)

Mr. Justice Richard Wagner:

I appreciate the question, Mr.
Weston.

When we're talking about access to justice, one of the first criteria
is to make sure that the judgments, the reasons, are not only well
delivered, but that they're clear enough to be understood by
everybody.

As I mentioned earlier, sometimes it's not easy to simplify things
too much. There are very complex issues and sometimes the right
decision will justify longer sentences to adequately cover complex
issues. But at the end of the day, if everybody keeps the same
objective, to make sure that the information and the reasons are clear
enough, I think we can manage in most of the cases to deliver
judgments clearly and to make sure that they are well understood by
the population and not just the lawyers.

Mr. John Weston:

Thank you.

On several occasions you also touched on the importance of the
independence of the judiciary. Given that independence can also be
isolating, how would you as an appeal judge and as a potential
Supreme Court of Canada judge stay connected to average
Canadians?

Mr. Justice Richard Wagner:

That's a good question.We have to
protect the independence and impartiality. As I mentioned before, a
judge in 2012, whether it be a trial division judge, an appellate court
judge, or a Supreme Court justice, must also participate in the
evolution of society, not only by mainly rendering judgments–that's
the first duty–but also by taking the opportunity that is presented to
him or her to let the people know what they are doing and explain to
the people what it means to be a judge. It's part of the public
education element which, in itself, will be able to maintain the
credibility of the justice system. It's only one element, but it's an
important element.

In that sense, I think it is true that you have to maintain
independence and impartiality, but that doesn't mean a judge cannot
deliver speeches on the merits of our judicial system. I think there's a
way to maintain both, to maintain the independence and also to
contribute to the credibility of our system.

Mr. John Weston:

Those are noble goals. Thank you very much.

The Chair:

Thank you very much, Mr. Weston.

Colleagues, we have gone through the questioning. We could take
a five-minute break, if you would like, or we could continue to the
second round.

Would it be okay with you, your honour, if we continue?

Mr. Justice Richard Wagner:

Yes, of course.

The Chair:

Colleagues, we will go for the second round.

[Translation]

I am now going to hand the floor over to my colleague
Mr. Gourde.

Mr. Jacques Gourde:

Thank you, Minister.

Mr. Justice, thanks to Canada's bijural tradition, we have common
law and civil law.

Could one or the other influence certain decisions? At the
Supreme Court of Canada, can our justice tradition provide reference
or case law, in property law or international trade, for example, given
that our system is based on twin pillars? Does it benefit Canada's
justice system? The French adhere solely to civil law, and the British,
only common law.

(1715)

Mr. Justice Richard Wagner:

It is indeed a tremendous
advantage. In many cases, the ones who benefit most are those
who are the least aware. That is an aspect I have somewhat tried, not
to correct, but to help set aside. My goal was to make people aware
of how much both systems–civil law and common law–enrich our
tradition.

Given the changing environment of business and global trade,
Canada truly benefits from having two distinct keystones of law. In
fact, the Supreme Court is the very place where such an appreciation
of that distinction is possible, an opportunity that other nations don't
have. It's a consideration I believe every justice on the Supreme
Court is extremely sensitive to. It's an asset when you consider trade
globalization. The influence of civil law on common law and of
common law on civil law are now daily realities. The court
welcomes it.

Mr. Jacques Gourde:

Thank you.

The Chair:

Thank you, Mr. Gourde.

Do you have any questions, Ms. Boivin?

Ms. Françoise Boivin:

You are in luck. We have three hours and
you're the lone witness. Last year, there were two for the same period
of time. This gives us an opportunity to get to know you better, and
that's not a bad thing.

Hon. Richard Wagner:

I'm not complaining.

Ms. Françoise Boivin:

You mentioned what is likely one of the
prevailing issues in Quebec, the importance of the rule of law and
access to justice. Quebec's current bâtonnier talked a lot about that
prior to his election. They are hugely relevant, and not just in
Quebec. Their importance is easily transferred to the rest of Canada.

You touched on this, and it also appeared in the papers: when you
were the president of the Conseil de la magistrature, you wrote a
letter defending the body's independence, a vital component of any
sound legal system. I would like you to elaborate briefly on that
point.

In addition, I would like to hear your take on the role of lawyers
who will be arguing before you at the Supreme Court. They usually
don't have a lot of time to plead their case. To a large extent, you've
already formed your opinion, so one has to be fairly quick on their
feet to change your mind. Can someone change your mind? At the
Court of Appeal, were you ever faced with a situation when you
realized you hadn't considered a certain element and then had to
reconcile that?

Mr. Justice Richard Wagner:

Allow me to put your mind at ease
straightaway, Ms. Boivin. I can assure you that, on the Court of
Appeal, we did have occasion to change our initial impressions after
hearing the oral submissions. Clearly, we would read memoranda
and prepare extensively. A lot of reading goes on. We form an idea,
but we always keep an open mind. My colleagues say it all the time,
and there's a reason they do. There are times when we don't see the
case in the proper light until we've heard the submissions and
discussed the matter with colleagues, and we end up making the
right decision.

It's quite something to see just how open-minded one's colleagues
are. I have absolutely no reason to believe it will be different with
my colleagues on the Supreme Court, even though I haven't spent
time with them. Of course, we examine the case and perhaps form an
initial impression of what the issues are and how the case might
unfold, but we never close our minds to the possibility that our first
impressions may not be the right ones.

Ms. Françoise Boivin:

There is obviously no question of you
needing interpreters to understand the litigants before the Supreme
Court, is there?

Mr. Justice Richard Wagner:

I don't believe so, I would be
shocked if that happened.

Ms. Françoise Boivin:

I would like to turn to the letter you wrote
to La Presse on the independence of the Conseil de la magistrature.

Mr. Justice Richard Wagner:

As I said earlier, I am a staunch
defender of the independence and impartiality of the bench. Our
democracy and freedom hinge on it. I'd say that's a given in Quebec
and Canada, considering how well things are going.

Unfortunately, I think some people would do well to keep that in
mind a bit more. Often, it's possible to end up with a pile of little
things that grows and grows until you end up losing that feeling of
consensus that is crucial if the rule of law is to continue and disputes
are not to be settled through fist fights.

(1720)

Ms. Françoise Boivin:

Nevertheless, you don't often see a judge
resort to writing a letter to the media. They must be careful and
exercise caution. It is rare. Seldom have I seen a judge go to the
trouble of writing to the media.

Mr. Justice Richard Wagner:

There may have been special
circumstances that did not exist before. The fact of the matter is that
the reputation of an excellent Superior Court judge came under an
unwarranted and unnecessary attack. It prompted the Conférence des
juges des cours supérieures du Québec to respond, something it was
not in the habit of doing, I admit. The letter was not addressed to the
media specifically; it referred to an incident that involved the media.
The purpose of my letter was to underscore how important it is that
everyone respect the justice system and stand behind it.

I also wrote that the justice system was not immune to legitimate
criticism. Litigants and news media must be able to criticize the
justice system, given that freedom of speech is such a fundamental
right. As with everything, it still comes down to balance. In this
particular situation, there was an imbalance. I was simply warning
people how dangerous it is when you lose sight of that balance.

Ms. Françoise Boivin:

Thank you.

The Chair:

[English]

Thank you very much.

Greg Rickford.

Mr. Greg Rickford:

[Translation]

Justice Wagner, as a Quebec Court of Appeal
judge, what happened when you found that the trial court had erred
in law? In other words, what principle did you follow to determine
whether a case should be heard again or a decision overturned? It's a
technical question.

Mr. Justice Richard Wagner:

Basically, the test that is usually
applied in appeal court is to determine or identify whether the trial
judge made a critical error in applying the law.

And that is not the only consideration; a number of other factors
come into play as well. Was the error critical? Even so, what were
the consequences?

We don't undertake a single review based solely on that. And the
process is not necessarily the same across all fields of law. Different
conditions apply in family law, commercial law, criminal law and so
forth.

Usually in criminal cases tried by a judge and jury, we determine
whether an error occurred when the instructions were given. Even
so, we consider if a remedy can still be applied. Must a new trial be
ordered?

In short, a number of steps are possible once an error has been
detected or found. In criminal cases, for one, an error does not
automatically mean a new trial. There are other criteria as well.

In civil cases, other considerations also enter into the equation. Of
course, we examine the error, but a court of appeal must accord a
high degree of deference to the trial court. Deference must be shown
when assessing the credibility of witnesses. The trial judge is the first
authority to hear witnesses' testimony and weigh their credibility. An
appeal judge, whether on the Quebec Court of Appeal or the
Supreme Court of Canada, is not in the same privileged position
when it comes to assessing credibility.

The same goes for criminal cases. Great deference must also be
accorded to the judge at the sentencing stage. The Quebec Court of
Appeal does not intervene unless the judge has clearly deviated from
the norm in sentencing.

You are right. We identify the error, but other mechanisms are
applied before we intervene.

(1725)

Mr. Greg Rickford:

[English]

Thank you.

The Chair:

Stéphane Dion is next.

Hon. Stéphane Dion:

[Translation]

Thank you, minister.

Mr. Justice, throughout this conversation with us, you have been
very careful not to cross a line that would involve announcing in
advance personal opinions that could affect judgments you will have
to render. Judge Baudouin very clearly warned us about that line,
which seems to be overstepped too often in the United States, and we
really don't want to do that.

During our next five minutes, I would like you to clarify judges'
role outside their rulings. You said to one of my colleagues that
judges must play a part in the evolution of society. However, can
they do that without jeopardizing their role when rendering their
judgments? I have a very concrete example for you. In your opinion,
is it the place of a Supreme Court judge to ask a question on the
debate we are having here in Parliament with regard to the
bilingualism of a Supreme Court justice in Canada? Is that a topic
on which you should provide an opinion or, on the contrary, a topic
on which you should not speak out, leaving that debate to us?

Mr. Justice Richard Wagner:

You are asking a question about
Supreme Court candidates. I, myself, am speaking to you as a
candidate. I do not want to criticize either directly or indirectly any
future court colleagues. I think judges must be very careful to never
cross the line into political issues. It would also be undesirable for
politics to cross the line and interfere in the judiciary. That goes both
ways. We are clearly talking about the principle of the separation of
powers.

I agree with you that the line may not always be clear. Some
judicial comments may contain political aspects, just as some
political comments may contain judicial aspects. If people are of
good faith–as we always assume they are–normally, there should
not be too many problems. When I point out that judges are no
longer the sphinx judges they used to be at some point, that does not
mean we should start participating in talk shows every week or
giving interviews to all the magazines and commenting on public
affairs. It simply means that, in their role of judge–while fulfilling
their obligation to act in a reserved manner to maintain their
credibility so that they will not be accused of getting involved in the
public debate–they must nevertheless contribute to public education
as part of their mandate.

As a judge, I have been invited to information fairs organized, for
instance, by the bar of Montreal. Every year, information sessions
organized by the bar are offered to litigants for a week at the
Desjardins Complex. The bar invites judges from the Superior Court,
the Court of Appeal and the Court of Quebec to come meet with the
public. Occasionally, explanations are provided on how to preside
over a trial or on the judge's role. I think that role is fundamental and
useful. That role did not exist before. I think it is useful. That's
simply all there is to it–no more and no less.

Hon. Stéphane Dion:

Everyone has shared their legal background.
I am not a legal expert. However, like yourself, I studied
social sciences. May I ask how your background in social sciences
has helped you in your profession of jurist and judge and how it will
help you in the future in your position as a Supreme Court justice?

Mr. Justice Richard Wagner:

I can tell you that it has been very
useful. I studied at the University of Ottawa in a great environment. I
had some excellent professors, and I have very fond memories of
that time, in social science, political science and law.

Clearly, what I have gained through that experience is knowledge.
I have always held that, the more knowledge we have, the better we
are prepared for the future. I have mostly acquired knowledge in
comparative law. Studies in social science and political science
helped me learn about the basics of foreign political and legal
systems so that I could compare them with our systems. In
comparative law, we had courses on legal systems.

To answer your question, comparing various systems has helped
me in my practice as a lawyer and also as a trial and appellate judge.
I think that has been a very useful asset.

(1730)

The Chair:

[English]

Thank you.

Kerry-Lynne Findlay, do you have any questions?

Ms. Kerry-Lynne D. Findlay:

[Translation]

Thank you, Mr. Chair.

Some would say that it is impossible to truly prepare for a career
in the judiciary, contrary to the situation in some countries that use
civil law, such as France, where people can study at the French
National School of the Judiciary.

Although we have all had the pleasure of talking about your legal
pedigree, could you tell us who your mentors or models were? Have
any judges or jurists influenced your career path?

Mr. Justice Richard Wagner:

I would say that my father was the
person who had the most influence on me, for several reasons. That
is not so much because of his political or legal activities–although
he was an excellent judge and one of the best barristers of his time–
as it is because of his moral values, his sense of justice and his noble
spirit. I have been trying to apply his values, at my level, since I
started practising law. I have also been trying to apply them since I
became a judge. I think that generosity, listening and dignity are key
to being a judge.

That being said, it is certain that, as part of my practice, my
mentors have given me some great advice. Earlier, I mentioned
Paul Carrière and Jacques Chamberland, who provided me with
guidance and with whom I have actually reunited at the Appeal
Court a year and a half ago. He has always given me valuable
advice. Those are great jurists.

I do not want to spark jealousy, so I will be careful. However, I
can tell you that I have always been very appreciative of Judge
Gonthier's rationale and drafting style. He was a great jurist. He had
the ability to explain his thoughts in clear terms, easily understood
by lawyers and the public. He is certainly among those who have
inspired me over the years.

Ms. Kerry-Lynne D. Findlay:

[English]

Merci.

The Chair:

Pierre Jacob.

M. Pierre Jacob:

[Translation]

Thank you, minister.

Everyone has gone over their résumé, but I have not. So I want to
specify that, like Mr. Saganash, I studied law at UQAM. I first
studied criminology. I also studied at the ENAP. Therefore, I
understand very well how important the multidisciplinary aspect is in
the practice of law and in everyday life.

During one of your conferences, you talked about the importance
of judges being independent. You seemed to appreciate the
guarantees of independence and the freedoms of lawyers.
How will the appreciation of those fundamental principles help
you in the exercise of your future duties of judge?

Mr. Justice Richard Wagner:

The key is never to forget the
foundations of our society, of our democracy. Judicial independence
is one of those elements, but lawyers' independence and proper
operation constitute another important factor.

We have seen in societies drifting away from ours that, when
tyrannical systems were established, lawyers and judges were
usually the first to be affected. There are reasons for that. The
system does not want people to be represented and enforce their
rights, either through lawyers or judges. That is why it's important to
ensure the independence of judges, but also to ensure a solid bar
organization in democratic societies. That is a way to ensure
freedom.

(1735)

M. Pierre Jacob:

Based on the perception of lawyers pleading
before the Supreme Court of Canada, can you tell us how you see the
human side of the profession of Supreme Court justices?

Mr. Justice Richard Wagner:

I don't think people lose their
human qualities because they become judges. I rather think they use
them advisedly. When lawyers come before the court–be it a court
of first instance, the Court of Appeal or the Supreme Court–they
must be well prepared. That is equally true in the case of first
instances and at the Supreme Court. Issues are sometimes of a more
serious nature at the Supreme Court, but that does not change the
fact that lawyers have to prepare. That is a duty to themselves, but
especially to their clients. It is also an obligation of respect towards
the court. If I had one piece of advice to give them, it would be to
always make sure to be well-prepared.

M. Pierre Jacob:

My third question is the following. You have
issued rulings in high-profile cases–including the Vincent Lacroix
case and the case involving former judge Jacques Delisle. How will
your experience in managing that kind of a case–that kind of stress
from the media and all the stakeholders in the legal matter–help you
in your future role?

Mr. Justice Richard Wagner:

I think that Mr. Baudouin pointed
this out during his opening statement, when he said that a judge's job
is not to be popular. The fact that he or she is independent is what
makes the difference. When we keep our mission in mind, we can
make decisions in high-profile cases. We have to remember that our
mission is to ensure that the rule of law is applied and not to be
popular or unpopular.

Of course, when judges are involved in high-profile cases, they
may face some additional pressure, but I think that the goal is the
same, whether we are talking about a high-profile case or not. That is
how I always approach my cases.

The Chair:

[English]

Thank you very much.

Robert Goguen is next.

Mr. Robert Goguen:

[Translation]

Mr. Justice, as part of your practice, you
have represented many individuals, organizations and businesses.
You counselled them and defended their interests. In your opinion,
how does the law contribute to stability and economic growth?
Predictability comes to mind.

Mr. Justice Richard Wagner:

It is important for economic
stability. My experience in areas like commercial litigation has made
me appreciate the concern of litigants when it comes to what to
expect in the future, whether we are talking about individuals or
companies. There are all kinds of aspects and consequences
involved.

The first one obviously comes from the rulings issued. To an
extent, rulings help achieve a certain stability. They allow those
involved to understand the legitimate expectations in terms of the
economy. I think that rulings that help achieve a certain stability
have a major role to play. However, we may be talking about an
evolution. So rulings must be clear enough to enable litigants to
know what to expect in the future, regardless of whether they are
involved in trade or are individuals.

Mr. Robert Goguen:

Thank you.

The Chair:

[English]

Thank you very much.

Romeo Saganash is next.

Mr. Romeo Saganash:

[Translation]

Thank you, minister.

I will continue in the same vein as my two previous questions.

I found the answer to my question about founding peoples
interesting and I thank you for it.

I would like to talk about two rulings by the Supreme Court of
Canada–the Ipeelee ruling and the Gladue ruling. A sentence had to
be set in both cases. I can even read an excerpt of the Honourable
Judge LeBel's ruling, which was the following:

[English]

To be clear, courts must take judicial notice of such matters as the history of
colonialism, displacement, and residential schools, and how that history continues
to translate into lower educational attainment, lower incomes, higher unemployment,
higher rates of substance abuse and suicide, and of course higher levels of
incarceration of aboriginal peoples.

Aside from sentencing issues, what are your thoughts on how
“justice” can be effectively achieved through the Canadian courts?

(1740)

Mr. Justice Richard Wagner:

You referred to one case, Gladue,
but there are many other cases from the Supreme Court. As I
mentioned earlier, I'm very happy with the way the Supreme Court
delivered its decisions with respect to the first nations. I think that
the courts applied the law. Maybe for some people the application of
the law is creation of the law. I don't think it is, because the creation
of the law is for you, members of Parliament, to do. It's not up to the
judges. I'm satisfied that the law can be applied by judges. They did
so in the past, and I'm confident for the future, and I wish to
contribute to that effort.

Mr. Romeo Saganash:

[Translation]

Thank you, minister.

The Chair:

[English]

Thank you very much.

Scott Reid, do you have any questions?

Mr. Scott Reid:

I've been trying to think how I could ask the same
kind of general question in a way that would make you feel
comfortable in giving a response. Let me give this a try. Obviously,
I'm not asking for a response with regard to any particular question
you might be deciding.

About 30 years ago, prior to the charter actually,
when he was dealing with a question relating to the
division of powers, the then Chief Justice Dickson
stated:

If the Canadian Constitution is to be regarded as a “living tree” and
legislative competence as “essentially dynamic”, then the determination of
categories–

–by which I think he means “heads of power”–

–existing in 1867 becomes of little, other than historic, concern.

In other words, he was looking at the possibility that the courts
could, in order to achieve a more effective federation, adjust the
legislative competence of the federal and provincial legislatures.
I wonder how you feel about that approach.

Mr. Justice Richard Wagner:

Well, you are referring to a school
of thought or an opinion, a view of things. I'll repeat once again that,
seeing as I wish to participate in such debate as may be presented to
the court eventually, I would prefer not to comment at this time.

Mr. Scott Reid:

Let me try a different topic. I have another one I
want to get to which I think is quite important.

The Supreme Court Act dictates that leave to appeal a case from a
lower court should be granted when the case, as the law indicates,
raises an issue of public importance. What the law doesn't do is
explain what is meant by an issue of public importance.

Given the fact that you, like all Supreme Court judges, are going
to have to sit on one of these panels, what kind of criteria would you
apply in trying to determine what cases can be given leave to appeal?

Mr. Justice Richard Wagner:

I'm afraid I would give you the
same answer. I wish I could tell you more, but I can't, because
eventually I would participate in those decisions. Out of respect for
my future colleagues, I think it would be preferable not to comment
at this time.

Mr. Scott Reid:

All right. Thank you.

The Chair:

Thank you, Mr. Reid. That was a nice try on each of
them.

[Translation]

Mr. Toone, do you have any questions?

Mr. Philip Toone:

Yes, minister, thank you.

I will not ask any questions on the tree that is our Constitution. We
may discuss something else.

I really liked hearing you say that leadership is earned, not
imposed. I want to come back to my topic. I would like to see rulings
that educate, that help inspire faith in the legal system. That would
be especially useful for young lawyers–at least jurists–so they can
understand that issue properly. After all, they will be the
ambassadors of our legal system, and I want them to be welleducated.
I was wondering what kind of a role you thought the court
needed to play in terms of that.

I want to begin by asking you a personal question. As you said,
many young jurists today are entering the legal system–or at least
university–wanting to work in international law. We see that often.
As soon as they attend a course on private international law, they
realize that it may not be as romantic as they thought.

How much of a role do you think court rulings and debates play in
attracting people to the legal profession? How could the court train
young people?

(1745)

Mr. Justice Richard Wagner:

Issuing good rulings and making
them public is a key role of a court. Cases that make it to the
Supreme Court are clearly of national importance and should
therefore spark the interest of young students or lawyers. If the
rulings are clear and provide important avenues in terms of
Canadians' future, I don't see why students would not be interested
in continuing their studies in law or ultimately working in that area.
I don't know if that is the angle you wanted to address the question
from.

Mr. Philip Toone:

Regarding rulings issued by the court, I want
to come back to this idea that we often see split judgments. So there
may be a ruling issued by a judge on behalf of several others. In
addition, we will see other rulings that will be rather split and will
cause a lot more controversy.

Do you think a distinction should be made for those who are
studying that issue? It's certainly more interesting to have a ruling
drafted by several judges. However, would that play a role that
would be clarifying or more opaque–if you will–legally speaking?
What do you think would be more interesting for a student? Would it
be preferable to have a ruling with the global consensus of all the
judges or several rulings by several judges?

Mr. Justice Richard Wagner:

I would say that the question
needs to be put to students. Personally, I think that it is impossible to
have unanimous rulings in some cases. You are talking about
majority rulings with differing opinions. You are asking me whether
it would not be better to have a majority opinion without any
disagreements. I have two things to say about that. First of all,
differing opinions within a majority nevertheless constitutes a rich
source of information. Second of all, there may not be other ways to
achieve a majority with those disagreements.

If we nevertheless keep in mind, independently of the example
you gave me, the will of judges–and I think they have that–to
issue rulings that are known and intelligible, I think that there
shouldn't be any problems.

The Chair:

[English]

Thank you very much.

John Weston.

Mr. John Weston:

Mr. Justice Wagner, I believe I have the
honour of coming last in this train of questioners. I believe you and
the process have both done much to dignify our judicial system
today and to explain it. For that I applaud you and thank you.

As Canadians review this process and are with us today watching,
many will express frustration over delays and inefficiencies in our
system. You touched on that in your introductory remarks when you
referred to the “inherent delays of a judicial process” in that meeting
you attended in New York.

The B.C. project on justice efficiencies recently issued a final
report and expressed concerns on the criminal litigation side about
inefficiencies and delays. Other provinces have also expressed that
concern.

Chief Justice Beverley McLaughlin has pubically expressed
concerns stating, “as delay increases, swift, predictable justice,
which is the most powerful deterrent of crime, vanishes.” I am a
member of the New York bar, the Law Society of England and
Wales, as well as the one in B.C. In the information I get, this is a
truly transcendent problem in all western legal systems.

I am wondering if you might try to sum up some of your own
concerns about inefficiencies and delays in our court system.

(1750)

Mr. Justice Richard Wagner:

In my mind, the biggest challenge
to our judicial system is access to justice. I don't think the solution
could be found by only one body or one person. I think it could be
found by communication, by the joint effort of many persons or
entities involved in it.

You will remember 20 years ago, or maybe it was 15 years ago,
sometimes in certain cases, mostly in family law, you would see
somebody representing himself or herself. These days, before the
trial division, before the court of appeal, you will find people more
and more representing themselves. That's a reality that we did not
have 20 years ago. It brings with it all kinds of problems as well.
Access to justice is legal aid also. People are too rich to benefit
from legal aid but are too poor to pay for their own attorney. It's the
same everywhere: delays, all kinds of problems.

All these problems cannot be solved by only one entity. It's a joint
issue. I think that everybody should talk to each other. It's certainly
very serious. There are things that can be done, but they must be
done collectively and in accordance with everybody. I think there's
some hope, because I'm sure people are concerned about it now and
realize the importance of the issue.

Mr. John Weston:

Thank you.

Thank you, Mr. Minister.

The Chair:

Colleagues, that concludes our questioning.

Maître Baudouin, do you have some final words?

Mr. Jean-Louis Baudouin:

[Translation]

I do not want to extend this meeting
needlessly. I don't have much to add.

With your permission, I would like to thank you, parliamentary
colleagues, for this discussion and this exchange with Justice
Wagner. I have a specific reason for that. You have provided those
who are watching us with the opportunity to now understand the
benefit of the appointment process. For average people, that process
may sometimes appear to be fairly mysterious, so it was great to
demystify it.

In addition, thanks to the exchange we have had with Justice
Wagner, it may be easier to understand a bit better the importance of
the role played by the Supreme Court of Canada, the importance of
appointing the justices who are part of the Supreme Court of Canada
and the enormous task ahead of them, unfortunately. It may also be
easier to see how transparent this process is.

The Chair:

[English]

Thank you, Maître Baudouin. Those are comments
well said.

I can't let the opportunity go by without, as many of you have
done, thanking my university, the University of Windsor, for the
excellent legal education I received years ago.

Colleagues, this has been a very worthwhile process. Thank you.
Many of you have worked so long on this. I know you have spent at
least a couple of months examining these files and interviewing
people. I hope you haven't found it too long a process, but I think all
of us have benefited from it. I want to thank you and all those who
are here today for your questions. This has been a great exercise.
To all those who have supported all of us around the table today,
my thanks. I offer my thanks to the interpreters and to everyone else
who has made this possible. To the clerk, thank you very much.

And particularly to you, Justice Wagner, I believe this process is a
very worthwhile one to gain some transparency, and let Canadians
get some familiarity with those who occupy such important positions
as those on the Supreme Court. I think I speak for everyone that you
have made everyone here proud today with your testimony and I
thank you for that. We all wish you the very best in the future.